Public Bill Committee

[Frank Cook in the Chair]
CR 05 Information Commissioner

Frank Cook: I remind the Committee that the House has agreed to an instruction to the Committee in connection with the Bill. Copies of the instruction are available in the room. I call the Minister to move the amendment to the programme order standing in his name.

Ordered,
That the Order of the Committee [26 January] be amended as follows:
(1) in paragraph (1), at end insert
(g) at 9.00 am and 1.00 pm on Thursday 25 February;;
(2) in paragraph (4), leave out 8.00 pm on Tuesday 23 February and insert 5.00 pm on Thursday 25 February.(Mr. Hanson.)

Clause 35

Powers of court to remand

Question proposed, That the clause stand part of the Bill.

James Brokenshire: Welcome back to the Chair, Mr. Cook.
When we adjourned for the February recess, the Committee was debating provisions on gang injunctions. Clause 35 amends the Policing and Crime Act 2009, which created gang injunctions for adults, so that the references to powers of remand in schedule 5 to that Act relate only to persons aged 18 or over. I seek clarification from the Minister. What is the thought process regarding how children might be treated if they breach one of the gang orders?
I understand the intent behind the clause, but the question remains whether, if there has been a breach of an injunction, a young person may need to be taken into protective custody, to ensure that they do not become the victim of reprisal or gang violence. Do the Government intend to rely on other legislation on protective custody and referral to secure accommodation, using child protection or child welfare provisions? If an injunction has been breached by someone under the age of 18 and there is a feeling of threat or risk to the community, and remand in custody would have been deemed appropriate if that individual was aged 18 or over, how will the community be protected? The amendment to schedule 5 to the 2009 Act does not appear to address that, so I seek clarification on the thought process behind the clause, to understand more clearly how it is intended to operate to protect both individuals and the community if an order is breached. What regime might apply to children when, if they had been an adult, remand might have been appropriate?

David Hanson: As the hon. Gentleman knows, the clause amends schedule 5 to the 2009 Act so that the court cannot remand 14 to 17-year-olds in custody. As the Committee knows, we have under legislation allowed county courts to remand adults into custody, and that power is familiar and is used. We have looked at how we deal with 14 to 17-year-olds. The usual process for dealing with injunctions and breaches is relatively fast, generally taking place within 24 hours. I hope that that helps the hon. Gentleman. Although I understand what he says, in most cases the hearings will take place almost immediately, so the risk is very limited. It is therefore not proportionate for the court to have a power to remand, because we are trying to avoid bringing young people into custody. Remanding into custody would mean immediate custody. The breach can be examined by the court and the circumstances considered. There could be an element of risk, but given that the matter will normally be dealt within 24 hours, that would not be the case. I hope that reassures the hon. Gentleman, but if it does not I will happily listen to his concerns again.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Powers of court on breach of injunction by respondent under 18

James Brokenshire: I beg to move amendment 168, in clause 36, page 67, line 19, leave out from must to end of line 20 and insert
receive a report from the relevant youth offending team in respect of the person and take such report into consideration..

Frank Cook: With this it will be convenient to discuss amendment 169, in clause 36, page 67, line 25, at end insert
, and the court shall state its reasons why it is so satisfied that a detention order is necessary..

James Brokenshire: The clause sets out the powers of the court on breach of injunction by a person under the age of 18 in receipt of a gang injunction. There are some detailed matters relating to the general operation of the clause that we will discuss under clause stand part, but amendments 168 and 169 are designed to make specific provision for a report from the relevant youth offending team before any court decision is made on a breach of an injunction. Amendment 169 would require the court to state the reasons why it believes that a detention order is necessary, if that be the case based on the facts and circumstances presented to the court.
The reason for the amendment is that there is a requirement to consult a youth offending team under paragraph 4 of new schedule 5A to the Policing and Crime Act 2009 and to consider any representations. It seems possible to interpret the provisions of that paragraph in such a way that there is no actual requirement to receive a report, which would be the case if we were looking at a criminal case before the youth court. The relevant youth service would provide a report in relation to that young person, which would facilitate the courts consideration of what sanction or order may be appropriate, based on the facts and circumstances of an individual case.
In its briefing notes on the Bill, the Standing Committee for Youth Justice states:
We believe that these Orders are in effect criminal sanctions and that therefore the full protections of the youth justice sentencing process should be applied. For example, there is no proposal that any form of pre-sentence report should be provided before the court imposes one of these Orders, nor a requirement that the judge should give reasons for sentencing to custody as they would be required to do in criminal court.
Clause 36 inserts new schedule 5A into the Policing and Crime Act 2009 with the intention of mirroring provisions that might otherwise be available to a court under normal criminal sanctions. That has been one of the problems with the application of those types of injunction to young people: the relevant flexibility, sanctions and provisions do not currently reside in the civil court structure. The intention, therefore, is to import those sorts of concepts via new schedule 5A, to facilitate an appropriate disposal if an order is breached.
There would be a normal requirement for a court to use its powers appropriately and to demonstrate compliance with a range of other measures, including the European convention on human rights and the UN convention on the rights of the child. The lack of a requirement on the court to state publicly why it believes that a detention order is appropriate raises the question how the court would be able to demonstrate its compliance with the relevant provisions.
A detention order will require the secure estate to provide a separate regime for those childrenone that is distinct from the regime applied to children detained by the criminal courts. That is certainly the view of the Standing Committee for Youth Justice. Has the Minister considered that in the context of the use of the powers and court sanctions for breach of an order? Does he agree that, if there is a court sanction and the court is compelled to state publicly that a detention order is appropriate, a separate regime would be needed for children subject to sanctions under these civil orders? Or would young people sentenced to a criminal order and those in breach of a civil order both go to youth custody?
The interrelationship between the criminal and the civil systems is technically difficult and raises a number of problems, which is why the Government have taken their time in producing proposals on gang injunctions relating to young people. Relevant approaches need to be appropriately brought together to ensure there is no disconnect between the criminal system and the civil system, as enhanced by provisions imported in new schedule 5A.
There are two further limited points. Does rehabilitation need to be a factor in the courts consideration of advice that it receives from the YOT and its decision on whether detention is appropriate? That is why the amendment states the courts need to comply with its obligations in its consideration of why detention is necessary. In its briefing, Justice states that
short-term custody for children and young people of 14-17 inclusive normally includes a rehabilitative element, ie it is a detention and training order, not merely a detention orderwhereas these orders are purely punitive (detention alone).
That is Justices interpretation of provisions in new schedule 5A. Whether a detention order, as phrased in new schedule 5A, is a detention and training order or simply a detention order may be relevant to the courts consideration of whether to make such an order. We may get into debates about whether the intention is to punish or protect. The European Court of Human Rights has sensitivities on the nature of the orders and the fact that they need to be seen to be preventive rather than punitive to comply with relevant legislation.
We are importing provisions and melding two separate systems together into what might be characterised as a hybrid order in the context of the gang injunctions. It is important to understand clearly the factors that the court would need to consider and what it is required to state, to ensure that the requirements of relevant human rights legislation and convention obligations in relation to children are met. The amendments are designed to probe the Minister on that pointto discover whether the matter has been considered but what the amendments propose has been judged to be not necessary. Perhaps they would add something to ensure that the ordersin particular, the provisions relating to breachproperly reflect relevant legislation. The orders will be open to challenge if the relevant measures that might otherwise apply to a sanction given by a youth court on a criminal matter are not appropriately addressed.

David Hanson: I hope that I can reassure the hon. Gentleman. This provision relating to breach of an order would be the last resort, as has been stated in all of our debates on the matter to date, both on the Floor of the House and in Committee. We do not want a breach in the first place, but, if there is one, detention should be the last resort. If a breach occurs and a detention order of some sort is put in place, the injunction will have failed in its purpose, which is to ensure that individuals are not involved in and are removed from gangs. We have regimes for that, so it needs to be made clear that the provision relating to breach is the last resort and its use would signal a failure.
I have some sympathy with the points made by the hon. Gentleman, which are fair. We can look at how we can strengthen the provisions. The judge is already required under the legislation to consider representations made by the YOT, but that could be strengthened by a written report. I have no problems with that; it is a sensible suggestion. I am happy to look at that amendment, to test it and proof it, and perhaps to return to it on Report, if the hon. Gentleman will withdraw it today.
I anticipate that a judge handing down a detention order will give his or her reasons for doing so. However, as with the amendment on the YOT report, I think that the principle of amendment 169 is helpful. It could strengthen the provisions and may offer clarification. I have no problems with that. I hope, however, that the hon. Gentleman will withdraw that amendment, too, so that we can test it using our great powers of legal support, to ensure that it would not have unintended outcomes. Nevertheless, it is helpful and I am happy to consider it.
The hon. Gentleman asked fair and legitimate questions about whether there will be a separate regime. We intend to discuss the type of regime with the Youth Justice Board, which is responsible for establishments in which an individual will be detained. We want to ensure that all the boards experience is brought to bear on the regime, which will be drawn up in accordance with the needs of the individual child or young person, and of the types and groups of young people brought in. I must emphasise that that work has not been done to the extent that the hon. Gentleman might wish. The provisions are intended not to be breached. We do not want to see people going into detention.

James Brokenshire: I understand what the Minister says. If an order is issued, one would hope that it will be effective and that an individual will desist from following a particular path. However, we have to contemplate orders being breached. If, ultimately, everything has not worked out and detention is thought to be appropriate, will there be a training element attached, as is the case with normal youth custody? It would be a missed opportunity if the period of detention were not used to address the behavioural or other problems that had led to a breach.

David Hanson: The detention for breach is entirely separate from a detention for conviction for a general criminal offence, so the regime would not be the same as that under normal youth justice. We have not come to any conclusions about the type of regime, but we are going to discuss it with the Youth Justice Board. I hope that there will not be breaches. Part of the logic of the clauses, which the Government have discussed internally, is that if we only had lesser sanctions than the ultimate sanction of detention, there would probably be further breaches. The fact that there is an ultimate sanction of detention for breach means that an individual young person will know that they face a serious consequence if they breach an injunction. We have discussed the implications of that with the Department for Children, Schools and Families and the Ministry of Justice, but we have to have an ultimate sanction; otherwise, we water down the whole purpose of the injunction.
Finally, all of the legislation is compliant with the European convention on human rights and the United Nations convention on the rights of the child. As ever, that could be tested in a court or by both parties, but we believe that it is compliant.

James Brokenshire: On decision, I am interested to note that the Minister has had discussions with his colleagues in the DCSF and other Departments. Is he prepared to consider giving young people in these situations some quite specific support? If a young person who is in a gang goes into some form of youth custody, their gang membership may be hardened because of the other people who may be in that establishment. There might need to be a separate regime to protect that young person if the intention of the order is to prevent a pattern of behaviour that has become ingrained through gang membership. Is that line of thinking being developed?

David Hanson: If we reach the stage where the young person is detained, the whole thing has failed. If they are detained, we need to make sure that when they are returned to the community, they do not go back into a gang, and we do not want them to be involved in a gang in any youth justice facility either. Regimes drawn up by the Youth Justice Board to manage gangs in existing facilities are already in place, because it is not uncommon for gangs to form in prison or for members of rival gangs to find themselves in prison. Strategies are in place to ensure that we manage that now and the system under the Bill will be no different.
Whether there is an entirely separate regime has not yet been considered. The Youth Justice Board will reflect on the matter, but how we manage individuals if the new system fails and they end up in prison is crucial if we are to succeed in turning their lives around. I hope that that helps the hon. Gentleman. I will happily look at bringing back on Report a revised version of his amendmentor perhaps even the same versionto strengthen the provisions and to ensure that those objectives are met.

James Brokenshire: I am grateful for the Ministers constructive response to the amendments. I will not press them to a vote. I hope that he will take legal advice and give the amendments appropriate consideration in the light of the need for clarification to mitigate any risk of challenge. I understand that that risk cannot be completely avoided. I was interested to hear what he said about the regime that might operate should detention prove necessary because all other interventions have failed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

James Brokenshire: I have a few more general points to make on the clause and the interrelationship between the gang injunction provisions and the ordinary use of the criminal law.
As with antisocial behaviour orders and other orders, there might be overlap between the criminal law and the preventive order. If a gang injunction is issued at the same time as some other form of criminal sanction is imposed, how will the concurrent jurisdictions of the civil and criminal courts work? We did not explore this potential conflict when gang injunctions were introduced for adults. It is pertinent, therefore, that we explore the impact of gang injunctions on young people, particularly as the powers have yet to be tested and there is no experience of their use in relation to adults, let alone in relation to children.
What would happen if an act constituted a breach of not only a young persons gang injunction but of the criminal law? Which would have primacy? Gang injunctions are intended to be dealt with by the civil courts, but if an action breached the criminal law a case would have to be proven before a criminal court. We understand what would happen if a gang injunction were issued on a stand-alone basis, with no extraneous criminal procedures, but if there were that interrelationship between the civil and the criminal, how would the process work? It would perhaps be easier to prove a breach of an injunction on the balance of probabilities. Would that impede or assist a criminal case? We are talking about two different courts and regimes: the civil and the criminal. Is it intended that the criminal route would take primacy?
The Minister has previously said that criminal prosecutions would be preferred to the use of civil orders. Such factors would be tested in the pilot operations that the Minister has, I think, already mentioned, but, because of the range of new provisions that the Bill seeks to import into civil proceedings, the role of the district judge might also need to be considered. A district judge might not be familiar with using such powers to deal with a breach. How does the Minister intend to work with the judiciary, on further training on the powers, for example?
There is the potential for double jeopardy. Is there any perceived risk in the same facts and circumstances being connected to both a criminal sanction and a breach? Antisocial behaviour orders and some of the other orders that the Government have introduced have been criminal sanctions, breaches of which trigger a criminal offence. We now have a civil breach and a criminal sanction sitting alongside each other, and they cannot be dealt with by the same court at the same time, although magistrates might be given a dual mandate. In essence, the approach is modelled on the traditional contempt of court approach in the civil courts.
An additional factor is that a breach of a civil ordera gang injunctionwould appear to be not a criminal breach but a civil one. How does the Minister contemplate the information being recorded? Would it be flagged up on the police national computer, for example? How might the interrelationship between the civil and the criminal work, and what disclosure might be necessary in relation to, for example, Criminal Records Bureau checks? This is a complex area of law, melding concepts from the criminal law into the civil system. My comments are intended to check and to understand better how the Government intend the new approach, which is a new view on how quasi-criminal sanctions can be used in a more purely civil setting, to operate. Therefore, it would be helpful to hear how the Minister expects the interrelationship between the two regimes to operate in practice.

David Hanson: The hon. Gentleman makes valid points and it is reasonable to test them in Committee. Self-evidently, if there were civil and criminal proceedings against an individual, both courts would know what was happening. That would be normal practice. It is not unusual, and it happens now. Whatever the system might be, it would ensure that both courts knew that an individual was before them.
The hon. Gentleman gave an example of a concurrent breach of an order and a criminal offence. We would expect the breach to be dealt with relatively speedily and that the criminal offence would be understood at the time of the breach and would be taken into account by the judiciary accordingly. The activity on the breach would probably be dealt with quicker than the criminal offence, and when the criminal offence was dealt with that breach would be taken into account.
I might be missing the challenge, but I do not think there is a problem with the two systems working side by side. We need to ensure that we give guidance to the judiciary. We need to ensure that in both civil and criminal courts individuals are aware of the Bills provisions. As the hon. Gentleman is aware, a pilot will operate in a relatively small number of areas initially. If problems are identified, we can rectify them in due course.

James Brokenshire: I hear what the Minister says about the desire to deal with breaches of the orders speedily. He will appreciate that the criminal courts might deal with separate breaches of the criminal law for which concurrent, rather than consecutive, sentences may be handed down. Let us suppose that a multiple breach of the civil order is considered first and detention is thought to be appropriate because of the seriousness and, sadly, the nature of what occurred? The court dealing thereafter with the criminal offence might also wish to impose some form of detention. Would there be some linkage? If both matters are being considered by the same court, a judge may give a sentence of a year for each offence, to be served concurrently, but that concurrence is not available to the criminal court at that latter stage.

David Hanson: We are in danger of micro-managing the outcomes of the judicial system. I say that with the utmost respect to the hon. Gentleman. We are giving legal powers to impose a gang injunction. Breaches under the gang injunction could lead to detention if they are sufficiently repetitive or serious. A range of other matters could be considered in parallel by different courts or by the same court. I cannot determine the outcome today. The hon. Gentlemans valid points may need to be reflected upon, but I cannot give him the definite answers that he seeks based on a range of potential circumstances.
Offences would not be recorded on the police national computer as matter of course, although individual forces may record them for enforcement purposes. An offence would not automatically be uncovered by a CRB check, but it might come to light in an enhanced CRB check, depending on the nature of the breach and the comments of magistrates or judges who dealt with it. Breach hearings could be postponed. All sorts of things could happen. Perhaps this is the place to test the consequences of the activities of a particular judge, but I cannot clarify those issues to the extent that the hon. Gentleman wishes. I hope he will ultimately accept the clause as proposed.

Question put and agreed to.

Clause 36 accordingly ordered to stand part of the Bill.

Clause 37

Report on family circumstances

Question proposed, That the clause stand part of the Bill.

James Brokenshire: I shall speak on the requirement for family circumstances to be taken into account before making an ASBO. We recognise the sense of the provision, given inter-generational deprivation and sometimes the abuse of children in the home. While not justified or condoned, behavioural issues may arise when a young person is in a very disjointed and unstructured family setting. It is interesting to note the comments of Joyce Moseley, chief executive of Catch22, the young peoples charity, on these provisions. She said:
In our experience, parents do want help when it comes to improving their childrens behaviour. If there is now to be a process of mandatory assessment of parenting needs, then these assessments must be followed up with targeted support to help parents develop the skills necessary to make a real difference to their childrens behaviour.
That fastens on an important point about the requirement to report on family circumstances. Is it a report to aid the court when granting an ASBO and the conditions to be attached to it? That may be relevant in determining what is appropriate in making of one of these orders. Is it intended, through parenting orders or some other means, to provide preventive support, to try to break a pattern of behaviour that has triggered the interest of the court and other agencies?
Catch22 has said it would like the following included in parenting assessments: housing situation, financial situation and debt, family breakdown, conflict and bereavement, worklessness and/or long working hours leaving insufficient care of children, mental health in the family, and drug and/or alcohol dependency in the family. I would not like to see a list set out in the Bill, but clause 37 recognises that the Secretary of State would issue regulations in respect of the provisions. The helpful suggestions made by Catch22 would be relevant when considering subsequent regulations.
We need to look at earlier intervention for young people who may be displaying delinquency or behavioural issues. Whole family approaches and interventions are relevant for examining the causal factors behind a young persons behaviour. Therefore, it is sensible to have the formal requirement of a report when considering an ASBO. The question is what happens then and what further interventions may be provided to assist that young person and the family situation. As we have said in debate on other injunctions, the hope is to prevent breaches from taking place. The purpose of an order should not be, as some may see it, to criminalise a young person and get them before the courts in a different way. It needs to be preventive to be effective, to stop offending and provide relief for families and communities. We will come to that in relation to ASBOs in a broader sense in the next clause.
It would be helpful to understand how the Under-Secretary sees clause 37 operating in practice. There is sense in it, but the question is how it will be applied. Does he see it as a mechanism for facilitating wider interventions, or would it simply be limited to informing the court when it makes decisions on granting an ASBO and the conditions attached to it?

Alan Campbell: It is, as ever, a pleasure to serve under your chairmanship, Mr. Cook.
I am grateful to the hon. Member for Hornchurch for his helpful comments. I also pay tribute to the work of Joyce Moseley and Catch22; we should listen carefully to her wise words.
Clause 37 requires agencies considering applying for an ASBO against a 10 to 15-year-old to prepare a report on his or her family circumstances for the court. The purpose of that, to answer the hon. Gentlemans question, is for the court to be fully apprised of the young persons background before making a decision on whether to grant an ASBO. Moreover and cruciallythis is linked to our future deliberationsthe court must also consider whether to grant a parenting order alongside the ASBO. The report will help in reaching that decision.
The hon. Gentleman talked about the reasons why young people might behave in an antisocial way. It is suggested that it is often the result of a chaotic home life. The reality is that some parents want support for their children, but do not know how to ask for it or are not sure what is available. The assessment would, therefore, inform the agencies dealing with the young person and the family of the problems, and enable the agencies to find the means of addressing them. If we did not have the clauseif we did not take this further step, and there was no legislative aspectit could not be guaranteed that practitioners would obtain information about family circumstances, and the situation would not further improve. They might miss important information about a young persons home circumstances when they decide to issue an ASBO. That is why we are introducing the provisions.
The hon. Gentleman rightly points out that it is important that we intervene at an early stage to nip in the bud antisocial behaviour. If it escalates, it is a problem not only for the individual and the family, but for the wider community. An assessment is a vital part of the process. I strongly believe that we should be challenging parents to do more to prevent their children from getting involved in antisocial behaviour and offending. The reality, however, is that we need to support them to do more. There is evidence that when that happens, it often has a positive effect. The difference between the current situation and what we are suggesting is that agencies would require it to happen. We would, therefore, catch the minority of individuals who currently may fall outside the system.
I welcome the broad support of Catch22, as well as that of the Magistrates Association. A broad range of antisocial behaviour practitioners support the provisions.

Question put and agreed to.

Clause 37 accordingly ordered to stand part of the Bill.

Clause 38

Parenting orders on breach

Question proposed, That the clause stand part of the Bill.

James Brokenshire: We come to the question of mandatory parenting orders on breach of an ASBO. As has been highlighted in preceding debates, the issue of antisocial behaviour is pertinent. According to the National Audit Office, the cost to Government agencies of responding to reports of antisocial behaviour in England and Wales is approximately £3.5 billion a year. In 2008-09, 3.7 million incidents of antisocial behaviour were recorded by the police in England and Wales, equivalent to more than 10,000 every day. On average, 70 per cent. of the population perceive high levels of antisocial behaviour in their area, with the young and the less well-off being disproportionately affected, so I understand why the Government are proposing the measures. The question is whether they will be effective and what difference they will make should they be brought into effect.
All of us in the Committee are acutely aware of the impact antisocial behaviour can have on communities, families and individuals. It was brought into focus by the terrible case of Fiona Pilkington, a mother who killed herself and her daughter Francesca because of intimidation and the pressures of antisocial behaviour, feeling that there was no response in the community to deal with it appropriately. It is disturbing to hear the reports from the inquest into their deaths. The family suffered 10 years of bullying and intimidation from a gang of teenagers who congregated outside their home in Leicestershire and hurled missiles, shouted verbal abuse and committed other unspeakable acts.
The question the case raises is how that was allowed to happen. I appreciate that the case goes wider than the clause, which deals with mandatory parenting orders, but it provides a context for trying to break patterns of offending. Will imposing mandatory parenting orders on the breach of an ASBO, as contemplated in the clause, be effective considering the nature of ASBOs? Is it simply too late in the day to change patterns of behaviour at that stage?
There are questions about the effectiveness of ASBOs as a means of preventing antisocial behaviour, as the Under-Secretary is aware, given that we have previously debated the level of breaches. Between June 2000 and December 2007, 54 per cent. of ASBOs were breached. The breach rate for 10 to 17-year-olds is even higheraround 64 per cent. Research by the Library indicates that on average each ASBO in England and Wales has been breached 4.1 times. Nearly three quarters of breached ASBOs have been breached more than once, with the overall breach rate of ASBOs by juveniles running at 64 per cent., as I said.
The Government are proposing a mechanism to try to involve parents in a mandatory format at the latter stage, once an ASBO has been breached. Despite questions about the effectiveness of ASBOs, it is interesting to hear Ministers claim that the proposals would help to prevent young people from being sucked into a life of crime. However, the number of parenting orders each year under the proposals could, in fact, be just a handful. Figures in the regulatory impact assessment of the Bill published by the Home Office show that because ASBOs have fallen out of favour and fewer and fewer are being issued, there were just 126 breaches of ASBOs by 10 to 15-year-olds in 2007the latest year for which figures are available.
It would seem, therefore, that the mandatory parenting orders that would be covered by the provision will be very few and far between, particularly considering that discounts would need to be applied for multiple breaches. Some of the 126 breaches of ASBOs are likely to be multiple breaches, so that will reduce the number even further. Presumably, further discounts would need to be applied to take account of young people in local authority care and the fact that the courts have the right not to issue a parenting order in exceptional circumstances. It is perhaps hardly surprising, therefore, that the RIA acknowledges that the number of cases when a mandatory order, as set out in clause 38, would apply is small. Even then, the effectiveness of the measure in changing behaviour is questionable, given that patterns of behaviour will have been well established if a young person has received an ASBO and has then breached it.
The Minister also knows that parenting orders are available on the initial grant of an ASBO, under provisions in the Crime and Disorder Act 1998. In deciding whether a parenting order on the issuance of an ASBO is appropriate, the court has to take account of various grounds of suitability, and some guidance is provided by the Youth Justice Board in its briefing note on parenting contracts and orders:
The suitability of a parent or guardian for a parenting order is normally determined by an assessment process carried out by a practitioner from a YOT. If the assessments provide evidence that parents could be supported to positively influence their childs behaviour and the parents are not willing to engage with support voluntarily it will usually be appropriate to recommend a parenting order to the court. The recommendation should take into consideration the potential needs of both the parents or guardians and the child and the likely effectiveness in terms of changing their behaviour.
If there is a requirement on the issuance of an antisocial behaviour order to consider suitability for a parenting order at that point, and the youth offending team deems the parents not suitable, who will be left in relation to the mandatory requirement that will be triggered on the breach? The court will have already considered on the grant of the order whether a parent is suitable and whether a parenting order is likely to be effective. If the order is then breached, will the case fall into the exceptional circumstances category? How will that operate? How many parents will be caught by the provision if the youth offending team has already determined that a parent is unsuitable? If the team determines that the parent is unsuitable at the time the ASBO is granted, what changes between the granting of the ASBO and its breaching? I genuinely struggle to see how the provision adds effectiveness if there is already a process for assessing the effectiveness of a parenting order.
It is also worth looking at the profile of young people who breach their ASBOs. A December 2004 study by the Youth Justice Board identified the majority of young people entering custody as a result of breaching an ASBO as prolific offenders, with 43 young people who received custody for such a breach having a total of 1,779 offences between them. One of the problems in youth offending at the moment is prolific offenders. Would a mandatory parenting order be effective for the category of young people who breach their ASBOs?
One only has to look at the appalling case of James Moore. He received an ASBO and multiple control and supervision orders, which he breached, yet little seemed to be done about it. Sadly, he went on to kill 16-year-old army cadet Joseph Lappin by stabbing him through the heart with a 4-inch blade, at a youth club in Everton, Liverpool. That appalling case is instructive, and perhaps puts into context the likely effectiveness of the orders, which will also have been considered earlier in the process. Moore had breached his ASBO 10 times, there had been 41 individual complaints against him, and he had also breached further referral orders several times. It comes down to what should happen on the breach of an ASBO.
At present, there appear to be no meaningful consequences for multiple breaches. At the Labour party conference last October, when the Prime Minister trailed the orders contained in the Bill and in particular in clause 37, he said that
we have said that every time a young person breaches an ASBO, there will be an order, not just on them but on their parents, and if that is broken they will pay the price.
What does the Minister understand by paying the price? We are talking about the breach of an ASBO triggering a mandatory parenting order. Is that the price the Prime Minister was contemplating?
Will the Minister expand on what the regulatory impact assessment says about the sanctions for a breach of an ASBO? The RIA says that they range from a fine or community order to up to two years in youth custody, although in practice that will be reserved only for the most serious and exceptional circumstances. I entirely understand the desire not to put young people in custody too hastily, but what are regarded as the most serious and exceptional cases? Something appears to be going wrong if a breach of an order on multiple occasions does not appear to trigger a meaningful sanction that protects the community and gets the young person to change their behaviour.
There is also the question of the relevance the order would have for children already in local authority care. The sad reality is that a disproportionately high number of young offenders come from the care system. More than a quarter of young men and nearly half of young women in juvenile prisons have spent time in care. Those who have experienced a sustained period in care are more than twice as likely to offend as other young people. Does the Minister feel that the measure would add anything? Would it place further responsibilities on local authorities that might be failing in their support for young people who have been issued with an ASBO and then go on to breach it? My reading is that a mandatory parenting order does not apply to a local authority or to that sort of arrangement, so another category of young people breaching their ASBOs would fall outside the provisions of the clause.
Parenting orders are already available on the issuance of an ASBO. Why did the Minister not consider making it mandatory for a parent whose child has received an ASBO to be given a parenting order at that stage? That might allow earlier intervention. If an ASBO has been granted, something quite serious has occurred, so why was it decided to make the mandatory parenting order requirement sit at the time of the breach, rather than when the ASBO was issued? It is interesting to note that, according to the RIA, take-up of parenting orders on the granting of an ASBO is very low, for a variety of reasons: up to 2007, only 128 compulsory parenting orders were made. Can the Minister explain why that was? It is germane to our understanding of the number of orders that would be granted in relation to a breach of an ASBO.
It appears that mandatory parenting orders will not be a mainstream response. On what evidence that parenting orders will be effective at such a late stage in a developed pattern of delinquent behaviour does the Minister rely? Of the Youth Justice Boards budget of £97 million from 2008-11, how much has been spent or is committed to be spent on each parenting order? The RIA gives a figure of about £2,000, but are the orders intended to come out of that same budget? I assume that they are, given the wording in the RIA.
How much does the Minister expect to be spent on mandatory parenting orders each year? We assume that it will be a fairly low figure, given that only a few will be handed out, but how many does he expect to be issued? What has been the experience of the operation of section 9 of the Crime and Disorder Act 1998 with regard to the court stating the reason for not issuing a parenting order? That applies when a young person has committed an offence; there is a separate regime for the granting of a parenting order in those circumstances as well.
ASBOs are sometimes issued contemporaneously with a criminal order, and a criminal breach sanction may be handed down as well. What are the parallels? What will the relationship be between the clauses provisions and section 9? It is highly likely that there will be circumstances in which an ASBO is breached and section 9 would apply, because there will have been a criminal sanction. Which regime would apply? I assume that it would be the sanction for breach of an ASBO.
It is strange that subsection (2) suggests that a breach of an ASBO is regarded as more serious than a criminal offence. It requires a mandatory parenting order on the breach of an ASBO, but not when there has been a breach of the law. Is my analysis right? What thinking has gone into making the mandatory requirement sit on the breach of an ASBO rather than also applying it to a criminal breach that would trigger a section 9 provision?
I am trying to understand how the provision will make a significant difference to dealing with the problem of antisocial behaviour, which has a material impact on the lives of so many people in our constituencies up and down the country. Various claims have been made that the provision will make a difference, but I am left with the impression, from the evidence provided to date, that it will apply only in a small handful of cases. The provision will, therefore, have a limited effect at best, rather than being a positive step forward in dealing with the broad spread of antisocial behaviour relating to young people. That needs to be significantly addressed, because of the problems to which I have alluded.

Alan Campbell: The hon. Gentleman is right to highlight concerns that still exist in some areas about antisocial behaviour. It is his job to do that, but he seems to gloss over the progress that has been made in many areas, not least due to the work of local agencies, the police and the many brave residents who make a stand against antisocial behaviour in their area. The latest British crime survey shows that figures relating to perceptions of antisocial behaviour being a major problem in some areas are still too high, but they are coming down. We are working hard, particularly with the worst affected areas where perceptions are still too high. That is why we need to ensure not only that partners have legislative powers, but that they are using them and that the powers are effective.
I will outline the thinking behind the proposals, and I hope that will address the hon. Gentlemans concerns. He talked about breaking persistent offending and the behaviour that underpins it. Our contention is that parents have a crucial role to play. Many parents engage in the process and have a beneficial effect, but the reality is that not every parent is held to account.
The hon. Gentleman rightly pointed out that, in many cases, young people who get ASBOs breach them. He was also right to reflect on the fact that ASBOs seem to be synonymous with young people and antisocial behaviour when, in fact, around half of those that are issued do not go to young people, but to older people. I do not defend breaches of ASBOs, and I certainly do not defend the indefensible in some of the cases that he highlighted. There is, however, an underlying point, namely that ASBOs are part of a process. Nobody has ever said that they are the be-all and end-all, or that they should necessarily be the first intervention. They are part of a process. Breaching an ASBO says more about the people who breach them than about the ASBOs themselves. It is important that there is an escalatory approach and, if a breach does occur, that the people involved in the process, including the courts, hold the individual, and if necessary, the parents, to account.
We cite very oftenbecause it is truean authoritative report from the NAO about the use of antisocial behaviour powers. On the first intervention, around two thirds of individuals change their behaviour and by the third intervention, 93 per cent. have changed. From that, we can work out that 7 per cent. do not change. We have to ensure that every power and influence we have is brought to bear, and that includes holding parents to account.
I will set out briefly the current situation and what clause 38 would do. The clause would require the court to make a parenting order when a 10 to 15-year-old breaches an ASBO. It is already a requirement that the court must consider making a parenting order when placing an ASBO on a young person. The requirement ensures that the presumption is that a parenting order would be in the interests of preventing further antisocial acts by the young person. Therefore, the big difference for the hon. Gentleman is that we want to move from may to must, to make sure that parents are involved, although many of them already are. They can play a vital role in preventing their children from offending or reoffending.

James Brokenshire: I hear what the Minister says but the key point is the time when the mandatory requirement takes place. He is right to say that parents need to be involved in the actions of their children, and to be held to account. The question is why that occurs or is mandated only upon breach, rather than on the grant of the ASBO or the committing of a criminal offence.

Alan Campbell: I was about to come to that point. I return to a phrase I have already used todayour determination to support parents but also to challenge them to accept their full responsibilities. Parents often seek help and we will seek to provide it. However, some are unwilling or unable to do so. The hon. Gentleman talks about the point at which we seek to intervene, as if there were no intervention at earlier stages. I would like to think that there is involvement of parents at the earliest stages. I have been out in my constituency with local police and my local authority on a scheme called Child Safe, which entails going around, particularly on Friday and Saturday nights during term-time, taking alcohol off young people and then taking them home. From seeing the reaction of some parents, I know that intervention is sufficient to prevent their children from getting involved not only with alcohol but with the antisocial behaviour that sometimes follows. The approach does not always work with all the young people who are picked up, so there is a need to escalate to the point when it becomes mandatory for the parents to be held to account.
We have to see the proposals as a process in which people are held to account throughout. When they are not willing to be involved voluntarily, we should mandate them. That is where the provision comes in. The hon. Gentleman talks about engaging parents and changing behaviour. I would go so far as to saythough I have no evidence to back it upthat the cases when parents do not get involved may be those relating to the worst and most persistent offenders. The chaos of the household that leads the child to antisocial behaviour may also be reflected in the unwillingness of the parents to engage in the process or show much interest in what their children are doing. I cannot point to the evidence, but that is my gut reaction.

James Brokenshire: I respect everything the Minister says. My concern, as I have previously indicated, is that very few parenting orders under the existing arrangements appear to be issued in relation to the grant of an ASBO. It would be helpful to understand what factors lead to that, because it may affect the operation of the clause. Equally, it would be helpful to understand how many parenting orders a year the Minister expects to fall within the ambit of the clause.

Alan Campbell: Again, the hon. Gentleman pre-empts my comments. The nub of the issue is who will be caught by the provisions, without which there would be no legal consequence for parents of children aged 10 to 15 who breached an ASBO. Under the status quo, antisocial behaviour practitioners would continue to rely on the current system for making the parents of young people with ASBOs take responsibility for their childrens behaviour. That is entirely voluntary. Shifting from that voluntary system to our present proposals is the important step.
As I have mentioned, it is not a matter of involving parents at a late stage, as the hon. Gentleman said. The Youth Justice Board advises us that about 85 per cent. of parents are willing to engage with the authorities, but there is little leverage to compel unwilling parents to co-operate. That is the point, I think, behind the hon. Gentlemans question. It is about making that minority get involved in the process, because, as the law stands, that cannot be done. The provisions are about bringing them into the system and holding them to account.

James Brokenshire: The Minister probably knows that section 9 of the Crime and Disorder Act 1998 states:
Where a person under the age of 16 is convicted of an offence, the court by or before which he is so convicted...if it is satisfied that the relevant condition is fulfilled, shall make a parenting order; and...if it is not so satisfied, shall state in open court that it is not and why it is not.
Therefore it appears that there is compulsion and an ability to make parenting orders. The breach of an ASBO is effectively a criminal offence, so the section 9 regime would operate. The Minister is obviously highlighting deficiencies in the operation of section 9, which it appears already provides a mechanism to impose a parenting order if that is thought appropriate.

Alan Campbell: I am saying that we want to ensure that we have a comprehensive system in which the issue is taken up and in which it is not the case that individual cases are looked at in isolation and the mandatory element is not taken up by the court. My understanding is that section 9 will not apply to criminal breaches of ASBOs and that new section 8A will. We are thus seeking to change the situation.
Perhaps the hon. Gentleman is reading into that the idea that we are not content that the current system is clear enough or, most important, that it is used sufficiently, and that is what is behind the provisions. We want to ensure that parents are involved at an early stage and bring a positive influence to procedures, and we accept that in the vast majority of cases they are involved in that way. We hope that is one reason why young people change their behaviour.
However, we accept that in a small minority of casesabout 15 per cent., according to the Youth Justice Boardparents do not willingly get involved, and we want to ensure that the system catches them. It is a matter of giving leverage with respect to the most difficult parents, to ensure that they accept their responsibilities.

James Brokenshire: I note everything that the Minister says, but he has not responded to the specific question about how many parenting orders he would expect to be issued per year. Would it be five, 10 or 20? Can he give any suggestion, so that we can assess the likely effectiveness of the clause?

Alan Campbell: That follows from the remarks I have just made: the provisions are designed to hold to account the minority of parents who are not engaged in the process. We are not talking about hundreds of instances, but about the worst cases in which breaches occur. Many ASBOs are effective and are never breached. Many parents get involved in the process, but we are concerned about a minority of cases. I cannot give the hon. Gentleman a definitive answer. I shall try to find a closer answer.
We are talking about relatively few cases, because we do not see the problem as a wide one. It is about engaging the minority of parents who, as the law stands, do not engage voluntarily where the law is not strong enough to ensure that that is what they must do. The provision is about providing the tools to ensure that parents who require support to manage their childrens behaviour, or who refuse to engage with authority, get the help they need. Implicit in the hon. Gentlemans comments is the question whether there are resources to ensure that that happens. The resources are there at a local level through family intervention projects and the many ways in which engagement can already take place, and we expect them to be widely used.
Finally, the hon. Gentleman asked about local authorities where children are in care. Many such children are the most complex and often tragic cases, which is why they are with the local authority in the first place. We expect that local authorities acting as the parent or guardian would not only accept that responsibility and engage, but would bring all their resources and expertise to try to change the behaviour of children. They may have more influence and resources than some parents haveor at least believe they haveto come to terms with the behaviour of the child involved.
I hope that with those comments the hon. Gentleman understands the Governments position. We seek to ensure that parents are engaged and to move beyond just allowing them to be brought into the system, to actually ensuring that they are in the system, because at the end of the day they have a crucial and positive role to play. That is good for their children and good for the wider community. I commend the clause.

Question put and agreed to.

Clause 38 accordingly ordered to stand part of the Bill.

Frank Cook: It has come to my attention that some members of the Committee are indicating that they feel somewhat chilly. The question of the temperature was raised 15 minutes before the Committee started this morning and I had hoped that it would have been corrected by now. Rest assured that it will be rectified for the afternoon sitting. I will see to that personally.

Clause 39

Extension of licensing scheme

Douglas Hogg: I beg to move amendment 89, in clause 39, page 79, line 13, at end insert or.

Frank Cook: With this it will be convenient to discuss amendment 88, in clause 39, page 79, line 15, leave out from vehicles) to end of line 23.

Douglas Hogg: These are not very weighty amendments. While or is very interestingit is of course the lead amendmentamendment 88 is perhaps of greater significance. If I may, Mr. Cook, I will deal primarily with amendment 88.
Amendment 88 seeks to prevent the Secretary of State from adding to the range of categories covered by the licence things that the Secretary of State might deem to be appropriate to be included by order. I can see the advantage for Government in doing that, because they want to be able, from time to time, to extend the range of activities. Broadly speaking, I am against that. I do not like giving delegated powers to the Secretary of State if I can avoid it and I do not see a compelling need in this case.
I know perfectly well that parliamentary control over secondary legislation is jolly slight. I cannot remember offhand whether this is an affirmative or negative resolution procedureI should have checked but I do not know. No doubt the Minister knows off-hand. Whether it is or it is not, if it is negative it will never be debated; if it is affirmative it is not amendable. It is objectionable on both counts, so I am against it and I hope that the Committee is too.

Andrew Rosindell: It is a pleasure to welcome you back to the Chair and to serve under your chairmanship, Mr. Cook.
I want to remark briefly on the comments of my right hon. and learned Friend the Member for Sleaford and North Hykeham on his proposed amendments. It is useful that the amendments have been tabled, because the Minister needs to clarify precisely what he seeks to achieve.

Douglas Hogg: Extension of powers.

Andrew Rosindell: That is one thing, but the extent of those powers needs clarification; such other activities needs to be clarified. I probe that matter in the hope that the Minister will clarify it, and we can clearly see exactly the other actions upon which heor perhaps she at a later datewould want to act. Without such clarification, it is difficult to know whether we can support the clause. I thank my right hon. and learned Friend for tabling the amendments, and I await the Ministers clarification.

Alan Campbell: Clause 39 provides for the regulation of vehicle immobilisation businesses by the Security Industry Authority and, via new section 4A(2)(c), for business licensing to be extended to other licensable sectors by means of separate designation by the Secretary of State. The right hon. and learned Member for Sleaford and North Hykeham and I have served together on a number of Committees, and he is entirely consistent in his opposition to the approach and to its underlying principles. I doubt whether I will assuage his long-held view.
I confirm that the affirmative rather than the negative procedure will be used. We have no plans to introduce business licensing to other sectors of the private security industry, but we consider it sensible to leave open that possibility. Failings in another sector of the private security industry might mean that regulation is needed at business level in the same way as has been identified in the vehicle immobilisation sector, so we do not want to rule that out. However, as the right hon. and learned Gentleman knows, if we went about the matter in another way and were seeking to take action on that, it would require primary legislation, which it is not always possible to access.
It is useful that the Bill is on the stocks, and we have deliberately moved vehicle immobilisation into it, not least because it is a big problem in many of our constituencies. Primary legislation might not always be available if we wished to move further.
It is also possible that regulation at business level could become the most appropriate way to regulate a sector or sectors of a particular industry, rather than regulation at individual level. We simply do not want to rule out that possibility, or miss the opportunity should we have it. I shall give the right hon. and learned Gentleman an example, which I think has already been acknowledged. We are considering the activities of bailiffs. The right hon. and learned Gentleman will probably know from his postbag that some of their practices are almost as despicable, if not as despicable, as those of some of the wheel-clamping companies. Were we seeking to move on that behaviourfor which I think we would have public supportwe would want to be able to do so at the first opportunity. That is why, despite the right hon. and learned Gentlemans opposition to the underlying principle, we support having the power available to the Secretary of State.

Douglas Hogg: May I respond, Mr. Cook? I understand why Governments do this; they always do it. We did it when we were in office, and will doubtless do it when we get into office again. I would be much happier with the affirmative procedure if the time for debate were longerit is usually 90 minutesand if the motion were amendable. If motions were amendable, I would not have a great deal of complaint about the affirmative procedure, but they are not and that is why I constantly complain. I agree that there are advantages in using a statutory instrument rather than primary legislationthat speaks for itselfbut it is the absence of amendability that I find so offensive.
I shall not press the amendment to a vote, because I do not believe that I have the support of big battalions on it, but this is an opportunity once again to complain and to say that the secondary process would be a lot more acceptable if motions were amendable.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment 171, in clause 39, page 79, line 33, at end insert or agent.

Frank Cook: With this it will be convenient to discuss amendment 172, in clause 39, page 79, leave out lines 41 to 43.

James Brokenshire: Amendment 171 is technical and probing. I wish to better understand the ambit of the clause. The insertion of new section 4A in the Private Security Industry Act 2001 provides for the licensing of businesses. As I understand it, employees fall outwith subsection (4). My reading is that a licensed business is a licensable activity and that employees of that business should not have to go through the same arrangements as a business and provide registration. They do, however, have to meet requirements in relation to their individual activities.
I seek clarification of the relationship between the rights of employees and those of agents. It is possible that someone may not be an employeethey may be self-employedbut may be engaged by a business as an agent. The regulated business may rely upon an agency and its activities may be carried out by that individual. This probing amendment seeks to understand how agency and self-employed contractors providing services on behalf of a business are captured by new section 4A.
I understand that if one has a licensable business, the provision is not intended to capture employees. Employees conducting activities must have the appropriate Security Industry Authority licence, so the provision is trying to avoid duplication. An agent, however, is not an employee in strict legal terminology; in other words, an agent is not employed and may have a contract for services rather than for employment. However, they act in the capacity of an employee, albeit through a separate contractual arrangement, and fall outwith the definition of subsection (4). Is that the intention? Might the concept of agency need to be considered further in relation to self-employed persons employed by a regulated business? They would not have to register as a business in their own right if they were covered by regulations. Is there a risk of duplication? Will the Minister reflect upon the matter?

Tony Baldry: This is the first of the amendments that relate to wheel-clamping, other than that tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham, but that was of the general sort that he always tables

Douglas Hogg: That is a rather disparaging way of putting it.

Tony Baldry: With great Ă(c)lan, I hasten to add.
I wonder whether we can establish the casus belli of the issue. It would be helpful to recap.
Aeons ago, it seems, when the Committee took evidenceBill Committees now do so as though we were Select Committeesthe president of the AA gave evidence. I cannot recall whether you chaired that session, Mr. Cook, or whether it was Sir Nicholas. I asked Edmund King what the AA would like to see in the Bill. Lo and behold, no sooner had he given his shopping list than the Minister, like Cinderella at Christmas, produced a list that I think it would be fair to sayI do not know other colleagues positionmet most, if not all, the points of concern raised by the AA and others among us about wheel-clamping and the public mischief caused by it hitherto.
On the back of the amendment tabled by my hon. Friend the Member for Hornchurch, one question is still outstanding about how such companies might be controlled, although it might just be my misunderstanding. I think the Government have dealt with wheel-clamping per se, but what is their position on people who place what look like parking tickets or demands for fines on vehicles? They are effectively obtaining pecuniary advantage by deception, as they are giving the impression that the ticket is a statutory demand when it is not.
When the AA and others gave evidence, they said that practice would still be a public curse, because there was a danger that what we were doing would only cause wheel-clamping to be displaced by the placing of alleged financial demands on vehicles and the chasing up of such demands. I have had correspondence from constituents, as I am sure have other colleagues from all parties, who have been persistently chased by companies wishing to extract purported fines from them. Only when they have asked in return, What is your statutory justification for seeking to extract this money from me? have the companies eventually gone away, but not all people do so. As far as I am concerned, that is the only serious issue left in relation to the measures, given the Ministers helpful concessions earlier in our proceedings.

Frank Cook: Order. I have been rather tolerant with the hon. Gentleman. Wonder was the inspirational motive behind his contribution, but we all wonder. Personally, I was wondering what his speech had to do with amendments 171 and 172, but doubtless the Minister will tell us.

Alan Campbell: I have been called many things, but Cinderella at Christmas, or Cinderellas fairy godmother, is not one of them. [Interruption.] We will leave the ugly sisters out of it.
You will tell me if I am out of order, Mr. Cook. The hon. Member for Banbury raises an alternative to what we are trying to do in the Bill: what would happen if the wheel-clampers decided to use ticketing as a way to avoid the provisions? We have discussed a range of issues, including that one, with the Department for Transport. We are not blind to the fact that those who want to persist in practices such as those we are outlawing might look for other ways to do so. The Government would, I am sure, want to take action in such circumstances, but the provisions concern wheel-clamping specifically.
The changes we seek to make have widespread support in general, including from some people in the wheel-clamping sector. They want the sector to be better regulated. They do not want cowboys to be part of it. I know that later we will debate whether there should be a wheel-clamping sector at all, but if we are to have one, some in the industry would welcome what we are doing, because we are seeking not to displace such behaviourticketing might be a way of responding to thatbut to change it.

Douglas Hogg: Ticketing is unenforceable, which is why they have resorted to wheel-clamping.

Alan Campbell: Absolutely. The right hon. and learned Gentleman is correct that enforcement is much easier if a wheel clamp is put on a car and removed only when the money has been paid, especially if it is the extortionate fees currently charged. It is much more difficult with ticketing.
The general point that worries the hon. Member for Banbury is whether people will try to use an easy option. As in many aspects of the security industry, we are seeking to drive out not just the cowboys but those who act on the other side of legality. The Government do not believe there will be an easy option and will take action if one becomes evident. This may not be the last time we need to return to tackling those who seek an unacceptable regime for controlling parking.

Mark Oaten: In that last remark, is the Minister not highlighting the difficulty with the Governments approach? He is acknowledging that the issue will probably have to be revisited, because industry will find a way round the licensing scheme. The fact that the Minister said that industry welcomes it suggests that it thinks the scheme is a soft touch.

Alan Campbell: No, I am happy to say that is not what I intended to say. I am sorry if my words gave the hon. Gentleman that impression. The measure is about getting rid of practices widely regarded as unacceptable. It is not about knowingly entering a new regime with the expectation that there will be displacement. That is precisely the point I am making. We do not expect those consequences. In response to the hon. Member for Banbury, I am saying that were there to be unintended consequences, any Government would seek to rectify them. I certainly do not believe that the industry accepts the scheme because it thinks it will be easy to evade. There are more in the industry against what we are doing because evasion is not easy. As in many sectors, there are people who want to work in a properly regulated industry and to drive out the cowboys who bring it into disrepute, as well as causing harm to the public. I refute what the hon. Member for Winchester said, although I am sorry if I gave him that impression.
Let me return to the amendment. Subsections (4) to (7) of new section 4A limit the business licence requirement to those responsible for control of, or decisions of, businesses carrying out the licensable activity. That is very much about the controlling minds that we want to reachthose who set the regime that many people find unacceptable. Subsections (4) and (5) together exclude from the business licensing requirement individuals carrying out vehicle immobilisation activity on behalf of another. Subsection (5) provides examples of particular cases where that is so, for example, subsection (5)(a) covers employees acting on behalf of their employer.
Amendment 171 would exclude agents as well as employees from the business licence requirement, but we believe that is unnecessary given the drafting of the clause, as subsections (4) and (5) apply when a person acts on behalf of another. We believe that is covered by what we are suggesting.
Amendment 172 would remove the particular arrangements for contractors set out in subsections (6) and (7) which have the effect of ensuring that where an individual is employed by another individual who is a subcontractor, only the main contractor is liable, as we do not want the employing subcontractor to be liable in those circumstances.
Let me explain clearly why that should be the case. A main contractor might be retained to manage a firm or shops parking area, with complete discretion to apply his own business policies, such as the size of release fees or what signs they would use currently.

Douglas Hogg: I was just reflecting on what the Minister said. I think that he said that subsection (4) covers agents because of the phrase
carries out an activity...on behalf of another person,
but then I go to subsection (5), which defines the meaning to be attached to subsection (4). The central question I ask the Minister is this: is subsection (5) an exhaustive interpretation of subsection (4), because if it is it does not cover agency? It might not be an exhaustive definition of subsection (4), so in other words subsection (4) is then capable of carrying the agency point. We need to know whether or not subsection (5) is an exhaustive definition of subsection (4) activities.

Alan Campbell: I am grateful to the right hon. and learned Gentleman. It is not an exhaustive list, but a number of examples, so our view is that it would include agents. I will go away and reflect on that point, because if we need to be more prescriptive I am happy to consider that point. That comes to the nub of the amendments and why we believe them to be unnecessary. We are not seeking to have individual responses to the different ways the industry might be organised in particular areas. We are trying to ensure through the business licensing requirement that we regulate the business practices of every vehicle immobilisation business, whatever their business model. We are seeking to avoid a situation in which people will move to a different business model to get around the kind of regulations we are looking at. Our general approach is to ensure that we focus on those who ultimately decide on the practices in an area, meaning the businesses themselves, so we are confident that that is the best way to proceed and will be most effective. Therefore, I hope that the hon. Member for Hornchurch will not press his amendment.

James Brokenshire: I am grateful to the Minister for his response and for his being prepared to reflect on the comments made on the interrelationship between subsection (4) and subsection (5), which obviously have to be read together for their interpretation. However, the carve-out at the bottom of subsection (5) states that it will not cover situations in which a person is
acting pursuant to a contract for the supply of services.
It seems to me that that might undermine some of the things he said about agency and that there might be unintended consequences. However, I fully recognise, particularly in that area, the need to ensure that people do not try to abuse the provision, and I can see circumstances in which that might be the case and in which people will try to test the operation of those provisions. Therefore, in the light of his helpful response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Douglas Hogg: I beg to move amendment 90, in clause 39, page 80, line 14, leave out from conviction, to to in line 15.

Frank Cook: With this it will be convenient to discuss the following: amendment 93, in clause 39, page 80, line 16, leave out or to both.
Amendment 91, in clause 39, page 80, line 17, leave out from indictment to first to in line 18.
Amendment 92, in clause 39, page 80, line 18, leave out or to both.
Amendment 137, in clause 39, page 80, line 18, leave out five and insert two.
Amendment 135, in clause 39, page 80, leave out lines 19 to 25.

Douglas Hogg: The amendments relate to the penalties available to the court in the event of breach. We are dealing with both magistrates courts and Crown courts. As far as magistrates courts are concerned, which are dealt with in subsection 8(a), I am seeking to prevent the penalty of imprisonment being available. You look puzzled, Mr. Cook, so I hope that I have got this right. I thought you were about to say I was out of order.

Frank Cook: Please carry on.

Douglas Hogg: So far as the Crown court is concerned, that is dealt with by subsection (8)(b). The present draft enables the Crown court to impose a term of imprisonment of up to five years and of up to 12 months in the case of the magistrates court. The general proposition has to be that prison is imposed only in the absolute minimum of circumstances. The prison population is far too high. When I was Prisons Minister at the back end of the 1980s, the prison population was 40,000. Only 20 years or so later, it is now more than 80,000. As one who practises in the criminal courts, I know perfectly well that large numbers of people who are in prison should not be there. It is not necessary to include the power of imprisonment as a penalty for every class of offences that is enacted by Parliament.
Should a magistrates court be able to send a person to prison at all for this kind of offence? I think the answer is no. If it is a really gross matter then let it go to the Crown court, but if it is a matter that should be dealt with by the magistrates court then prison is not appropriate, so I am against this so far as the magistrates court is concerned. I have tried to strike it out altogether. I feel the same about the Crown court. I do not think this is the class of offence for which people should be sent to prison. But if I am wrong about that, for goodness sake, two years as a maximum is quite enough. Five years is quite ludicrous for this kind of thing, especially when it is backed by the ability to impose a fine. This is simply part of a general mentality of including prison whenever an offence is created.
We should not be doing this. Indeed, it is contrary to overall Government policy, which says that prison should be a matter of last resort. I agree with that. It is also contrary to the approach taken by the superior courts, which constantly make the point that prison should be the penalty of last resort. I hope that the Government will give serious attention to this. We send all the wrong signals when we impose terms of imprisonment for offences that are not of the class to carry a term of imprisonment as a penalty. That is all I want to say about the matter. I am fed up with terms of imprisonment being in legislation with which I am asked to deal.

Andrew Rosindell: My right hon. and learned Friend makes a number of extremely valid points. I have some sympathy with his views. Sending someone to prison for an offence such as this should be considered only in extreme circumstances. I see no need to have five years; two years should be the maximum. This is a sledgehammer to crack a nut. I would not agree with everything my right hon. and learned Friend said but we need flexibility to deal with such a case, particularly if it is a persistent offence. I do not think that the possibility of using a custodial sentence should be taken away completely, but the Under-Secretary should reassure the public and the Committee that such a sentence would be used only in the most extreme cases. The sentence should be proportionate to the crime, rather than a five year sentence. I find it hard to see how that could ever be applicable.

Alan Campbell: The hon. Gentleman has just highlighted the dilemma we face. He is quite right to draw attention to the issue of whether or not the penalties are appropriate, but of course there is a need for penalties, because we are talking about people who, in breaching licences, can be guilty of carrying out pretty terrible practices. That is the dilemma.
I want to try to set out why we have got to this position, because it is important to remember that this work will be part of the work of the Security Industry Authority, whose actions will be governed by statute. The clause as drafted provides that a person who commits an offence under new section 4A of the Private Security Industry Act 2001 would be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine up to the statutory maximum of £5,000, or to both. On conviction on indictment, an offender would be liable to imprisonment for a term not exceeding five years, or to an unlimited fine, or to both.
Amendments 90 to 93, and amendment 135, would have the effect of removing the option of imprisonment in either court. Amendment 137 would have the effect of reducing the maximum term of imprisonment on conviction on indictment from five years to two years. We are asking the SIA to be the providers of the licences for businesses and they are, of course, subject to the 2001 Act. The clause, as currently drafted, provides for penalties directly in line with those in section 5 of the 2001 Act for the offence of using unlicensed security operatives.
We can have a debate about the repercussions of the clause on the wheel-clamping industry and on the type of practices that people find abhorrent, but of course in other areas that the SIA regulates there are some terrible practices which, particularly where security is involved, can often have awful consequences. So we should not in any way underestimate the damage that could be done if we were to take too light a view of the type of work that is regulated in the clause.
The same provisions apply in section 6 of the 2001 Act to the offence of using unlicensed wheel-clampers as committed by the occupiers of premises. In a sense, I think that we are coming at this issue from the other end of the spectrum to the right hon. and learned Member for Sleaford and North Hykeham, because we see no reason not to have the option of imprisonment as a sentence for businesses that commit such an offence. I accept, however, that he is arguing about the length of the sentence, rather than whether or not there should be a sentence.
I am happy to place on record our view that, although we support the option of imprisonment for people who break the law in this area, many cases will not warrant imprisonment. Offences against the business licence requirement and the terms of licences are serious, but we would want to leave such offences to the discretion of the court. We believe that imprisonment is a necessary option for the worst offences, and that is consistent with current provisions applicable to the employment of unlicensed wheel-clampers.
The penalties are therefore consistent with those in section 5 of the 2001 Act for the offence of using unlicensed security operatives. We believe that the offences that might be committed in this sector are as serious as those that might be committed in other sectors. Therefore, we do not see any reason to vary those penalties simply for vehicle immobilisation businesses. We have talked to others in Government about whether or not there should be a lesser sentence. We could not decide what the criteria should be for reducing the sentence from five to two years, other than that there would be a lesser sentence. There did not seem to be any real criteria or comparison to explain why two years would be more acceptable or more proportionate, except that a two-year sentence suggests that the offence is less serious than a five-year sentence would suggest.
It may offer some comfort to the right hon. and learned Gentleman to learn that there is debatenot only within parties but within government, and indeed outside governmentabout whether or not long prison sentences are the way to go, so the length of sentencing and the penalties are kept under review. At some point in future we might return to that.

Andrew Rosindell: I am listening carefully to the Under-Secretary, and he is explaining the position very clearly. However, I am not certain why we need a prescribed period, if it is up to the courts to decide the sentence in proportion to the crime. Why not let the courts make a decision based on the offence? Why prescribe two, five or any number of years?

Alan Campbell: We are talking about five, because that is what is in section 5 of the 2001 Act. The legislation is already there; Parliament has already decided whether, in similar areas that are licensed by the Security Industry Authority, it is appropriate to imprison someone, and what an appropriate sentence would be. Our question would be the opposite of the hon. Gentlemans. We would not ask why wheel-clamping should be included in the list, but why it should be dealt with differently. What is it about wheel-clamping that makes it worthy of a lesser sentence? The courts might take the view that what is available to them is a maximum of five years imprisonment and an unlimited fine, but that they will impose a lesser sentence or perhaps no period of imprisonment. The option should, however, be available to them, and we see no reason to deviate from a route that has already been laid down. That is why, unfortunately, we cannot support the amendments.

Douglas Hogg: With your permission, Mr. Cook, I would like to make three observations. The first is that the Under-Secretary began his comments by saying that he and I were approaching the matter in rather different ways. He is right. He said that the proper approach is to ask why wheel-clamping should not attract a prison sentence. I ask a different question: why should it? It is perfectly true that that is a difference of approach. The Under-Secretarys approach raises the presumption that wheel-clamping should attract a prison sentence; I raise the presumption that it should not. That is a fundamental difference between us. I strongly believe that the prisons are overflowing, packed with people who should not be there, and that one reason is that people are constantly saying that a whole range of activities should attract a prison sentence when they simply should not. I regard the Under-Secretarys presumption as a heresy with which I strongly disagree.
Secondly, I am offering a compromise. I am not usually a compromising man on this issue. The compromise is something like this: we drop the prison sentence for the magistrates courtonly relatively minor cases will be triable by that court if there is an alternative of trying on indictmentand we confine prison to trial on indictment in the Crown court. That is a compromise. At that point, we have to determine only the term. I am strongly in favour of two years over five, which in this context means 12 months, unless I am wrong. That is a substantial sentence for wheel-clamping; I certainly do not want to serve 12 months for any offence, far less for wheel-clamping. I should have thought that, in reality, a penalty inside of 12 months was perfectly adequate. Even if I was wrong about that and I settled for five years, provided that the compromise was accepted, justice would perhaps be met, because in those circumstances the prosecution authority would send cases involving repeated offences to the Crown court. That is what concerns my hon. Friend the Member for Romford, and I suspect the Under-Secretary also. His position is therefore guarded and so too is minehence the compromise.
My last point is made in response to the Ministers least attractive argument, which is that as the 2001 Act already commits the heresy we should commit it again. I have always thought that that was an absolutely rubbish argument: the fact that previous legislation imposes sentences of imprisonment, where that is not necessary, is not a good reason for going on committing the sin. I commend my very modest compromise to the Minister, and hope that he may feel able at least to reflect on it before Report.

Alan Campbell: I am always happy to reflect on such things, but I must return to the fundamental point that we are trying to deal with vehicle immobilisation in the context of the SIA and the 2001 Act. If vehicle immobilisation were brought into that framework the penalties would already be laid down. I shall reflect on the matter but, as I suggested towards the conclusion of my previous remarks, there is debate in Government anyway about the appropriateness and length of sentences, so the right hon. and learned Gentleman might get what he wants from a different route.

Douglas Hogg: It is very gracious of the Minister. I recognise that the undertaking was not full-hearted, but it was none the less generous as far as it went, and I shall be interested to see whether, in June or July, the roles will be reversed, and the Labour party will be arguing against imprisonment, in circumstances in which the Conservative Front Bench may argue in its favour. That would be an interesting contrast, which I shall not be intimately involved in, anyway, in this House. On that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Douglas Hogg: I beg to move amendment 143, in clause 39, page 81, line 3, at end insert
(aa) the occupier fails to display by a notice displayed in a prominent place the name, address and telephone number of the person referred to in paragraph (a);.

Frank Cook: With this it will be convenient to discuss the following: Amendment 138, in clause 39, page 81, line 4, after person, insert to the knowledge of the occupier.
Amendment 139, in clause 39, page 81, line 6, after section, insert
and the occupier is aware of that fact.
Amendment 140, in clause 39, page 81, line 33, after first or, insert wilful.
Amendment 141, in clause 39, page 81, line 33, leave out from of to end of line 34.

Douglas Hogg: This is me with my libertarian hat on again; I try to wear it the whole time, as a matter of fact.
I am against absolute offences. I think that the courts should always be careful to convict only when it is just to do so. Parliament is far too swift to create absolute or strict offences. In tabling the amendments, I have tried to do two things, which relate to the new subsection 1A(b) that clause 39(3) would insert into section 6 of the 2001 Act. Amendments 138 and 139 would mean that subsection 1A(b) stated: the carrying out of those activities involves that other person to the knowledge of the occupier engaging in conduct licensable under section 4A in respect of which he is not the holder of a licence under that section and the occupier is aware of that fact.
I hope that the Committee sees the justice of that. It is important that the occupier should be liable only for those activities of which he is aware, to the extent that he is aware that they are licensable. If the occupier is not aware that the activities are licensable, it seems jolly unfair that he should be subject to criminal penalties.
That takes me to the second point. It is right that the occupier should be convicted only in the event that he or she knows that the person carrying out the activities is not the holder of a licence. To put the thing the other way round, is it fair that the occupier should be held liable in law when they do not know that the person does not hold the licence?

Mark Oaten: Surely the occupier has some responsibility to establish those facts when they choose to contract out to someone who takes on the work on their behalf.

Douglas Hogg: They may have a responsibility, but what if they are deceived? There is a limit to what occupiers can do, especially if they are people of fairly modest circumstances, and one must recognise that they might be deceived. It is perfectly fair to say that the occupier perhaps should act in that way, but what if they are lied to? Then the question relates to whether they should be held liable in the criminal court for receiving that lie and not taking it further.
That is the dilemma, and it arises in an awful lot of cases. For example, someone who receives stolen goods may well ask the person who brings them, Do you own it? and get the reply Of course I do; but he is being lied to. That is the sort of issue that arises.
In those cases, the prosecution should be under a duty to establish the necessary knowledge, first, that the activities are licensed, and secondly that the person carrying out those activities did not possess a licence. That is what the Crown should be obliged to prove.

Alan Campbell: Amendments 138 and 139 would separately require that for someone to be guilty of an offence under proposed new section 4B(3)the offence of allowing an unlicensed wheel-clamping business to work on their premisesthe occupier of those premises must know that the business is carrying out licensable activities without being licensed. We believe that what the amendments seek to achieve is already provided for in the 2001 Act. Proposed new section 4B(3) will insert the new offence into section 6 of the 2001 Act as subsection (1A). However, section 6(2) of the 2001 Act already provides a defence for the occupier which is either
that he did not know, and had no reasonable grounds for suspecting...that the individual in question was not the holder of a licence,
or that he took all reasonable steps to ensure that the individual did not carry out licensable activities when he did not hold a licence.
We believe that there is sufficient scope in the current Act for a person in the situation described by the right hon. and learned Gentleman to have a defence and claim either that they had no grounds for suspicion and did not know, or that they had taken all reasonable steps under the circumstances. What the amendment seeks to achieve is already covered by the 2001 Act.
Amendments 140 and 141 would amend proposed new section 4B(6), which provides for the prosecution and punishment of offences committed by unincorporated associations under the 2001 Act. New section 4B(6) is intended to cover situations where, for example, a group of wheel-clampers acts as a body but without any separate legal status as such. It would make both the unincorporated association and specified members of it liable to prosecution for offences relating to business licensing. Under new section 4B(6), the relevant authority, such as a partner or officer, could be prosecuted if the offence was committed
with the consent or connivance of, or to be attributable to any neglect on the part of
the individual concerned.
Amendment 140 would add the word wilful before connivance, which would suggest the intention to do something. Our view is that connivance is tacit permission and already implies an act of will, whether through a deliberate action or by deliberately disregarding something. The amendment would raise the threshold for prosecution and, for reasons that we cannot see, would make it more difficult to prove an offence.
Amendment 141 would remove the possibility of prosecution for an offence attributable to neglect by the individual. Again, that would raise the threshold for liability for prosecution, so that intention rather than negligence would be required for an individual to be prosecuted. We believe that there could be cases where individuals fail to act where there is a breach of the law by the group of individuals they are working with. Proving intention may be impossible, but that does not mean that people should not be held criminally responsible when appropriate, such as when they have not taken appropriate care to avoid using unlicensed operatives.
Amendment 143 would amend proposed new section 4B(3) to create an offence in which an occupier fails to display a notice as described in the amendment. I understand the good intentions behind the amendment, but, as I am sure we will come on to discuss, we have deliberately set out not to put the licensing requirements in the Bill, but to set them out in secondary regulations. I assure the Committee that notices will figure largely not only in that set of requirements, but in our deliberations.
The regulations will cover, at the necessary level of detail, not just signage but matters such as maximum release fees, time limits on removing vehicles, methods of payment, and informationa discussion we had during the evidence sessionsas well as warning signs, size, design, contents and positioning. Those issues, as well as signage, will be addressed in the regulations. Not putting the regulations in the Bill gives us an opportunity for the important next stage, which is to have a consultation with stakeholders to ensure that we get the regulations right and that we can amend them, if necessary, through statutory legislation. From time to time, we may need to add things to the regulations.
I understand the intent of the amendments, but I hope that by setting out our intentions with regard to the regulations and referring to what already exists in the 2001 Act, we have addressed the concerns raised by the right hon. and learned Gentleman.

Douglas Hogg: Mr. Cook, I now understand why you were looking a bit puzzled when I first rose to my feet. The lead amendment, as the Minister rightly pointed out, is amendment 143 and I was not in fact referring to amendment 143 when I made my preliminary remarks, I was referring to the other amendments. Now I understand why you looked so puzzled.
I have three sets of observations. First, as regards the notices covered by amendment 143I am jolly glad to hear that the Minister will deal with this subsequentlymy recollection of the evidence session is that one of the problems relating to wheel-clamping is that, when a person comes to find his or her vehicle clamped, they have not got a clue how to get it unclamped.

Frank Cook: Ive been there.

Douglas Hogg: As you say, Mr. Cook, you have been there yourself. It is very important that the detailsthe telephone number and so onof the clamper should be made public so that the person can achieve a speedy release. I am in favour of that.
The second point that the Minister dealt with was with regard to my amendment seeking to insert wilful before the word connivance and striking out attributable to...neglect. He said, quite rightly, that I was trying to raise the barrierand yes, I am. Why do I want to raise the barrier? I am against criminal offences unless they are absolutely essential. Contrary to the Ministers position, my presumption leads me to ask why we should make this a criminal offence, not why we are not making it a criminal offence.
The word connivance as it stands is capable of passive acquiescence as well as active intervention. I would like to see the word wilful in the phrase, because it suggests a higher level of culpability. That is the reason. As regards striking out attributable to any neglect, I do not want, as a general proposition, to see neglect amounting to a criminal offence. Sometimes it is negligent; however, whether it should be criminal seems to me to be a quite different issue. So, yes, I want to lower the bar and the Minister wants to raise the bar. There is that between us and in the end it is a matter for the Committee. I am not going to press the matter to a vote, but I am not in favour of having what is pretty much a strict offence.
My last point concerns drafting in general. The Minister may well be rightI accept his word about thiswhen he says that what he was trying to achieve with regard to amendments 138 and 139 is covered by the 2001 Act. That actually makes a general point about drafting. Where offences are spatchcocked into an existing Bill, it is actually quite difficult to follow. It is better by far to redraft the entire relevant clause into the amending Act, because otherwise there is constant cross-referencing and one fails to see things.
I have raised that point about drafting before. I am glad that the Minister has pointed out that the 2001 Act provides for an offence, but he will recognise, I think, that anyone reading the draft, which is an amendment, would not have a clue of that fact. That is a lacuna in our drafting process. It is not the fault of the Minister, but it is a fault of those of us who have been involved in the way that Parliament performs.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to consider the following: new clause 3Limitation on powers to immobilise, restrict or remove vehicles
(1) The Private Security Industry Act 2001 is amended as follows.
(2) After section 4 there is inserted
4A Limitation on powers to immobilise, restrict or remove vehicles
(1) A person may not carry out an activity to which paragraph 3 (immobilisation of vehicles) or 3A (restriction and removal of vehicles) of Schedule 2 applies unless he is either
(a) a public authority, or
(b) acting on behalf of a public authority.
(2) For the purposes of subsection (1), the person carries out an activity on behalf of a public authority in particular
(a) if he is, and is acting as, the public authoritys employee, or
(b) if he is acting pursuant to a contract for the supply of services with the public authority only where that contract does not allow him, or any other person, to benefit from a variable financial incentive which is dependent on the number of vehicles immobilised, restricted or removed..
New clause 27Prohibition of immobilisation or restriction and removal of vehicles
(1) A person commits an offence if the person carries out any of the following activities
(a) the immobilisation of a motor vehicle by the attachment to the vehicle, or to a part of it, of an immobilising device;
(b) the demanding or collection of a charge as a condition of the removal of an immobilising device from a motor vehicle;
(c) the moving of a vehicle, or the restriction of the movement of a vehicle, by any means;
(d) the demanding or collection of a charge as a condition of any release of a vehicle which has been so moved or restricted;
unless that activity is carried out with the consent of the owner, keeper or user of the vehicle.
(2) A person who is an occupier of any premises commits an offence if
(a) another person carries out, in relation to vehicles on those premises, any activities falling within subsection (1), and
(b) those activities are carried out with the permission of that occupier or for the purposes of, or in connection with, any contract for the supply of services to him.
(3) A person guilty of an offence under this section shall be liable
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) The Private Security Industry Act 2001 is amended as follows
(a) omit section 6;
(b) in Schedule 2 omit paragraphs 3 and 3A..
New clause 30Code of conduct (Private Security Industry Act 2001)
The Secretary of State shall by regulations make provision for the introduction of a code of conduct in respect of vehicle immobilisation activities and the issuing of penalties for parking on private land undertaken by any business licensed under section 4A of the Private Security Industry Act 2001 (inserted by section 39 of this Act), including making provision for requirements for appropriate signage on private land and maximum levels of penalties which may be levied..

Douglas Hogg: I will be brief. The question, it seems to me, is whether we should have a licensing regime for wheel-clamping or prohibit it. On balance, I am in favour of prohibiting it. I remember that during the evidence session, the MinisterI think that it was this Minister, but it might have been his right hon. Friendsaid, Well, ultimately we might have to ban the whole thing, but in the meantime, lets try an industry-led solution. That is an understandable position, but I am bound to say that, considering it broadly, I had some difficulty seeing why we should allow wheel-clamping on private property. On the whole, it seems a thoroughly undesirable activity, and I am personally in favour of banning it.

Robert Flello: Does the right hon. and learned Gentleman agree that ultimately, it should be up to the primary landowner to screen off their land if they do not want vehicles on it, or to put up a barrier and a proper access system if they want to allow vehicles, whether or not they charge for it? We could get rid of the legislation if they took those simple steps.

Douglas Hogg: That might be possible in most urban contexts, but it is not possible in a rural context. I have a small parcel of land adjoining my house. Anybody can come and park there. I could not fence it off in any way, because it is too extensive. The hon. Gentlemans proposal might be appropriate for pubs, car parks adjoining houses and so on, but it is not appropriate to the rural context, where the extent of the land is often far too great to allow for that approach. However, there is good sense in it with regard to the urban context.
Again, I seek compromise. I always do. A nice way forward would be something like this. We could keep the licensing regime in place, but we could also include a prohibition with a delayed implementation date that could take effect only with the affirmative resolution of the House. Of course, it would be an amendable resolution. What would then happen is that we would have a licensing regime, which the Minister will agree with the industry and so on, so that companies can go on conducting their business provided that they comply with the terms of the agreement. Behind all of that would be a ban, which would not come into effect unless implemented and would not be implemented provided that the industry did what it said it would. It would be the ultimate deterrent and a jolly good compromise.

Mark Oaten: I want to speak to new clause 3, which seeks to go further than the Governments proposals. The question is whether we believe that the industry can regulate itself under a licensing scheme or whether we need some new form of control over wheel-clamping. New clause 3 suggests that the process of vehicle immobilisation should be the responsibility of a public body. That is not to say, of course, that private companies could not be involved in delivery, but the regulation and the management would be run by public bodies, which could then contract out the work.
New clause 3 also seeks to remove the practice of linking financial incentives to the amount of clamping done. In essence, it would strengthen what the Government are doing with the licensing regime but take the matter out of the hands of the private sector and put it into those of public bodies to manage and oversee. We think that that is the most appropriate way to handle an issue that has clearly got out of control in the past four or five years.
The current system is not working. The Government recognise that, which is why they are proposing the changes. There has been an enormous increase in the number of private companies operating in the area, including a 58 per cent. increase in the past year; 2,100 private clamping firms now operate. We know from our mailbags as constituency MPs that the number of companies that are charging based on incentives in relation to how much clamping takes place is increasing. In some cases, companies provide a £50 commission per clamp for the individuals who do the clamping. Some companies have been setting targets of five clamps a day. Some companies offer a free clamping service because they will ensure that they make up their money through the amount of clamping charges that they put in place.
The existing system does not have an adequate right of appeal. That is why so many of our constituents ask us to take up their cases against the private companies. There is no system for genuine cases to be able to appeal. We also know from our mailbags that the charges being put in place are astronomical. The highest one that we found evidence of was the £314 that a disabled motorist had to pay to prevent her car from being towed away, even though her disabled badge was on display. There are endless examples; I am sure that we all have them.
The recent snow in my constituency brought the most bizarre cases of individuals who had to abandon their cars because they literally could not drive any further, only to discover that they had a clamp within 24 hours. I have three such constituents and I have not been able to win the case for any of them. I have not been able to get any justification for that from the private sector, from which the most appalling letters have been written back to me, basically dismissing me and my constituents out of hand.
All that leads me to take the view that it is time to get much tougher on the industry. The proposed licensing scheme is not adequate to deal with the severity of the problem and the practices in which the industry is involved. Obviously, as a Liberal, I do not like new laws; I prefer to see whether industries can self-regulate. That is my starting process, but the industry has had a chance to self-regulate. There are codes that the British Parking Association has in its guidelines, but they are being ignored by the industry. The codes on maximum fees are being ignored by companies, and the licensing scheme, in my judgment, will not be much more than an extension of the codes that currently operate. I have very little confidence that the industry will abide by that licensing scheme.
When the AA gave evidence at one of our hearings, the head of the AA expressed concern about the licensing scheme and said that when a licence is issued, that could just be a licence to print money. The AAs concern was that once a company has the licence, it will feel free to do as it wishes. It would almost be like a badge of honour to have the licence, but with regard to enforcement and whether the licence and the conditions that go with it, which we do not know about yet, would have any policing, the AA did not feel confident that that would take place. It also raised the concern that a company whose licence was revoked because it failed to meet its criteria would just rebrand and rename itself as another company. We know that that happens in all sorts of situations.
Therefore, there is concern that the licensing scheme will not be adequate and will not deal with the concerns. Surely we now have enough evidence that the industry has lost its right to regulate itself and that it is time to bring such a sensitive matter, which can impact on individuals enormously given the figures involved, into the public sectorinto a public bodyso that it can regulate and manage it and do away with the bad practice and the practice whereby individuals are, bluntly, making commission and profit on the back of something that should be regulated in a sensible and measured way. That is why we feel strongly enough about new clause 3 to seek to divide the Committee unless the Minister can give us very strong reassurances that the licensing scheme will be effective.

James Brokenshire: As I read new clause 3, the hon. Gentleman would be looking for local authorities to take over the responsibility. Why does he believe that that would be a better way of addressing things than a regulatory scheme in relation to the activities of those who, once they are regulated, should comply? Why does he see local authorities as the way forward in this regard?

Mark Oaten: I am grateful for the intervention. Let us take the example of the three constituents who were snowed in and whose cars were clamped. I have greater confidence that those constituents and I, as their Member of Parliament, would have a fair hearing by arguing that case through a public body than the way in which I was dismissed by the private sector. There is more chance that the industry could be managed if public bodies were overseeing it. I am not arguing that private companies should not be able to deliver the service, but that it should be under the control of, and contracted by, public authorities rather than operating as it does currently, which is with no control at all.

Andrew Rosindell: There is some consensus about the issue. All of us know of a huge number of constituents who have been done by cowboy clampers, and we all understand how angry people are when that happens. It is right that the Government are attempting to deal with the matter. However, much tougher action needs to be taken and I shall be seeking assurances from the Minister that under secondary legislation and, indeed, in the Bill measures will be effective in dealing with the widespread problem throughout the country.
New clause 30 would make provision for a code of conduct. It is essential. A code of conduct has to be enforceable under the Bill. The Liberal Democrat spokesman referred to giving local government control over such matters, but I am not convinced that that is the solution. We took evidence earlier from Councillor Shona Johnstone from the Local Government Association. She was clear that the possible cost implications on local government need to be considered. I appreciate and sympathise with the point of the hon. Member for Winchester that, if constituents go to their Member of Parliament or local councillors, they are likely to receive a response, whereas they do not from private companies, such as LBS Enforcement Ltd in my constituency. Like me, my hon. Friend the Member for Hornchurch has suffered from South East Clamping. Cowboy clamping demands huge sums from constituents. Of course, it is much harder to deal with a private company than it is with local government, but I must say to the hon. Member for Winchester that, if we allow local government to enforce all types of things to do with the private sector, where will that end? We must have laws that deal directly with the issue and are directly accountable rather than go through a public body in such a way.
I will not support local government taking control over such things, apart from the arguments regarding cost implications, finance and the manpower needed to enforce such a law were it to be introduced. I wish to give one or two examples because it is worth stating the extent of the problem. We all suffer from it. I draw attention to a lady in my constituency, Joan Orchard. She is a disabled, retired lady and was clamped and fined £280 by LBS Enforcement. She did not have the money in her account; she was forced to use a credit card with additional charges. She was told that it was contracted to work only until 5.30 pm. The clamping had occurred at 7.30 pm. Suffice to say that she appealed, but did not get anywhere. In any circumstance, that is a breach of the system.
We heard useful evidence about such matters in our earlier sessions. I made notes about three issues that need to be taken on board. I hope that signage will be enforced strongly under secondary legislation. That should apply to ticketing, too. There also needs to be a code of conduct. I want the Minister to take those matters into account under the Bill, as well as in the secondary legislation.

Alan Campbell: First, I shall cover the comments of the right hon. and learned Member for Sleaford and North Hykeham. A delayed ban is an interesting prospect. I suppose that it goes back to our earlier discussion about whether we have faith in the Bill. Well, we would not be discussing it in Committee if we did not. We expect it to work, but there has been a pattern whereby we licensed individuals involved in wheel clamping and we are now moving to businesses.

The Committee adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.